The appeal is dismissed.

The grounds of appeal are examined.

1. Article 70(3) of the former Military Service Act (amended by Act No. 9754, Jun. 9, 2009; hereinafter “former Military Service Act”) provides that when a person obliged to perform the duty of military service is unable to return to Korea within the permitted period after obtaining permission for overseas travel, he shall obtain permission for extension of the period from the head of the Military Manpower Administration by no later than 15 days before the expiration of the permitted period. Article 94 provides that a person who fails to return to Korea within the permitted period without justifiable grounds shall be punished by imprisonment with labor for not more than three years

Therefore, if a person is unable to return to Korea due to any cause not attributable to him, such as a sudden accident or disease, during the overseas travel, he is not punished on the ground that he did not return to Korea within the permitted period, but if he did not return to Korea within the permitted period without such justifiable cause, he shall be punished in accordance with the above provision.

In this case, whether there is a justifiable reason shall be determined based on the time of failure to return to Korea within the permitted period, except in extenuating circumstances.

2. The lower court found the Defendant guilty of the instant facts charged on the following grounds.

A. After December 31, 2005, the expiration date of the extension period for overseas travel, the Defendant applied for the extension of overseas travel for the purpose of medical treatment for diseases due to trees and booms.

However, the head of the Military Affairs Administration made a non-permission notification on the ground that the head of the Military Affairs Administration cannot be deemed to have a disease that makes it difficult to return to Korea.

Therefore, the Defendant’s failure to return to Korea within the permitted period has “justifiable cause”

It can not be seen, and it violates Article 94 of the former Military Service Act by failing to return to the Republic of Korea even though the notification to return to the Republic of Korea was received by March 26, 2006.

B. The circumstance that the defendant acquired a permanent resident status on February 27, 2006 and applied for permission for extension again shall be the period of permission for extension.